MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Judiciary B
By: Representatives Horan, Owen
AN ACT TO AMEND SECTION 41-21-63, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A CIRCUIT COURT TO RETAIN JURISDICTION AND PROCEED WITH CIVIL COMMITMENT IN CERTAIN CIRCUMSTANCES; TO AMEND SECTION 99-13-9, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE CIRCUIT COURT TO PROCEED WITH COMMITMENT PROCEDURES FOR ANY PERSONS WITH AN INTELLECTUAL DISABILITY AND HAVE UNRESOLVED FELONY CHARGES; TO AMEND SECTIONS 41-21-65, 41-21-67, 41-21-71, 41-21-73 AND 41-21-83, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE CIRCUIT COURT TO PROCEED WITH COMMITMENT PROCEDURES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-21-63, Mississippi Code of 1972, is amended as follows:
41-21-63. (1) No person, other than persons charged with crime, shall be committed to a public treatment facility except under the provisions of Sections 41-21-61 through 41-21-107 or 43-21-611 or 43-21-315. However, nothing herein shall be construed to repeal, alter or otherwise affect the provisions of Section 35-5-31 or to affect or prevent the commitment of persons to the Veterans Administration or other agency of the United States under the provisions of and in the manner specified in those sections.
(2) (a) The chancery
court, or the chancellor in vacation, shall have jurisdiction under Sections 41-21-61
through 41-21-107 except over persons * * * that have been indicted on
felony charges * * *.
(b) If a circuit court
with jurisdiction over unresolved felony charges enters an order concluding
that * * * a
person is incompetent to stand trial and is not restorable to competency in the
foreseeable future, the * * *matter should be referred to the chancery court to be subject to civil
commitment procedures under Sections 41‑21‑61 through 41‑21‑107
circuit court shall retain jurisdiction and shall proceed with civil commitment
procedures in the same manner as described in Sections 41-21-61 through 41-21-107.
The order of the circuit court finding that the person is incompetent to stand
trial and is not restorable to competency in the foreseeable future shall
be in lieu of the affidavit for commitment provided for in Section 41-21-65. * * * Additionally, if the finding of the
circuit court is based on the report and/or testimony of a physician or psychologist
that has examined the person, the provisions of Section 41-21-67 for psychiatric
examinations shall not apply.
(3) The circuit court shall also have jurisdiction under Sections 99-13-7, 99-13-9 and 99-13-11.
(4) Before the release of a person referred for civil commitment under this section and committed under Sections 41-21-61 through 41-21-107, the Department of Mental Health must notify the district attorney of the county where the offense was committed. The district attorney must notify the crime victim or a family member who has requested notification under Section 99-43-35 and the sheriffs of both the county where the offense was committed and the county of the committed person's destination.
SECTION 2. Section 99-13-9, Mississippi Code of 1972, is amended as follows:
99-13-9. When any person is
indicted for an offense and acquitted on the ground of having an intellectual
disability, the jury rendering the verdict shall state in the verdict that
ground and whether the accused constitutes a danger to life or property and to
the peace and safety of the community. If the jury certifies that the
person with an intellectual disability is dangerous to the peace and safety of
the community or to himself or herself, the circuit court shall * * * proceed
with the person according to the law provided in the case of persons
with an intellectual disability, the person with an intellectual disability
himself being remanded to custody to await the further action of the * * * circuit court.
SECTION 3. Section 41-21-65, Mississippi Code of 1972, is amended as follows:
41-21-65. (1) It is the intention of the Legislature that the filing of an affidavit under this section be a simple, inexpensive, uniform, and streamlined process for the purpose of facilitating and expediting the care of individuals in need of treatment.
(2) The Uniform Civil Commitment Affidavit developed by the Department of Mental Health under this section must be provided by the clerk of the chancery court to any party or affiant seeking a civil commitment under this section, and must be utilized in all counties to commence civil commitment proceedings under this section. The affidavit must be made available to the public on the website of the Mississippi Department of Mental Health.
(3) The Department of Mental Health, in consultation with the Mississippi Chancery Clerks Association, the Mississippi Conference of Chancery Court Judges and the Mississippi Association of Community Mental Health Centers, must develop a written guide setting out the steps in the commitment process no later than January 1, 2020. The guide shall be designated as the "Uniform Civil Commitment Guide" and must include, but not be limited to, the following:
(a) Steps in the civil commitment process from affidavit to commitment, written in easily understandable layman's terms;
(b) A schedule of fees and assessments that will be charged to commence a commitment proceeding under this section;
(c) Eligibility requirements and instructions for filing a pauper's affidavit; and
(d) A statement on the front cover of the guide advising that persons wishing to pursue a civil commitment under this section are not required to retain an attorney for any portion of the commitment process.
(4) Immediately upon availability, but no later than January 1, 2020, the Uniform Civil Commitment Guide must be provided by the clerk of the chancery court to any party or affiant seeking a civil commitment under this section and also must be made available to the public on the website of the Mississippi Department of Mental Health.
(5) If any person is alleged to be in need of treatment, any relative of the person, or any interested person, may make affidavit of that fact and shall file the Uniform Civil Commitment Affidavit with the clerk of the chancery court of the county in which the person alleged to be in need of treatment resides, but the chancellor or duly appointed special master may, in his or her discretion, hear the matter in the county in which the person may be found or the circuit judge may hear such matter as provided in Section 41-21-63. The affidavit shall set forth the name and address of the proposed patient's nearest relatives and whether the proposed patient resides or has visitation rights with any minor children, if known, and the reasons for the affidavit. The affidavit must contain factual descriptions of the proposed patient's recent behavior, including a description of the behavior, where it occurred, and over what period of time it occurred, if known. Each factual allegation may be supported by observations of witnesses named in the affidavit. The Department of Mental Health, in consultation with the Mississippi Chancery Clerks' Association, shall develop a simple, one-page affidavit form for the use of affiants as provided in this section. The affidavit also must state whether the affiant has consulted with a Community Mental Health Center or a physician to determine whether the alleged acts by the proposed respondent warrant civil commitment in lieu of other less-restrictive treatment options. No chancery clerk shall require an affiant to retain an attorney for the filing of an affidavit under this section.
(6) The chancery clerk may charge a total filing fee for all services equal to the amount set out in Section 25-7-9(o), and the appropriate state and county assessments as required by law which include, but are not limited to, assessments for the Judicial Operation Fund (Section 25-7-9(3)(b)); the Electronic Court System Fund (Section 25-7-9(3)(a)); the Civil Legal Assistance Fund (Section 25-7-9(1)(k)); the Court Education and Training Fund (Section 37-26-3); State Court Constituent's Fund (Section 37-26-9(4)); and reasonable court reporter's fee. Costs incidental to the court proceedings as set forth in Section 41-21-79 may not be included in the assessments permitted by this subsection. The total of the fees and assessments permitted by this subsection may not exceed One Hundred Fifty Dollars ($150.00).
(7) The prohibition against charging the affiant other fees, expenses, or costs shall not preclude the imposition of monetary criminal penalties under Section 41-21-107 or any other criminal statute, or the imposition by the chancellor of monetary penalties for contempt if the affiant is found to have filed an intentionally false affidavit or filed the affidavit in bad faith for a malicious purpose.
(8) Nothing in this section shall be construed so as to conflict with Section 41-21-63.
SECTION 4. Section 41-21-67, Mississippi Code of 1972, is amended as follows:
41-21-67. (1) Whenever the
affidavit provided for in Section 41-21-65 is filed with the chancery
clerk, the clerk, upon direction of the chancellor of the court, shall issue a
writ directed to the sheriff of the proper county to take into custody the person
alleged to be in need of treatment and to take the person for pre-evaluation
screening and treatment by the appropriate community mental health center
established under Section 41-19-31. Except as otherwise provided in Section
41-21-63, the community mental health center will be designated as the first
point of entry for pre-evaluation screening and treatment. If the community
mental health center is unavailable, any reputable licensed physician,
psychologist, nurse practitioner or physician assistant, as allowed in the
discretion of the court, may conduct the pre-evaluation screening and
examination as set forth in Section 41-21-69. The order may provide where the
person shall be held before being taken for pre-evaluation screening and
treatment. However, when the affidavit fails to set forth factual allegations
and witnesses sufficient to support the need for treatment, the chancellor
shall refuse to direct issuance of the writ. Reapplication may be made to the
chancellor. If a pauper's affidavit is filed by an affiant who is a guardian
or conservator of a person in need of treatment, the court shall determine if
either the affiant or the person in need of treatment is a pauper and if * * * the affiant or the person in need of
treatment is determined to be a pauper, the county of the residence of the respondent
shall bear the costs of commitment, unless funds for those purposes are made
available by the state.
In any county in which a Crisis Intervention Team has been established under the provisions of Sections 41-21-131 through 41-21-143, the clerk, upon the direction of the chancellor, may require that the person be referred to the Crisis Intervention Team for appropriate psychiatric or other medical services before the issuance of the writ.
(2) Upon issuance of the writ, the chancellor shall immediately appoint and summon two (2) reputable, licensed physicians or one (1) reputable, licensed physician and either one (1) psychologist, nurse practitioner or physician assistant to conduct a physical and mental examination of the person at a place to be designated by the clerk or chancellor and to report their findings to the clerk or chancellor. However, any nurse practitioner or physician assistant conducting the examination shall be independent from, and not under the supervision of, the other physician conducting the examination. A nurse practitioner or psychiatric nurse practitioner conducting an examination under this chapter must be functioning within a collaborative or consultative relationship with a physician as required under Section 73-15-20(3). In all counties in which there is a county health officer, the county health officer, if available, may be one (1) of the physicians so appointed. If a licensed physician is not available to conduct the physical and mental examination within forty-eight (48) hours of the issuance of the writ, the court, in its discretion and upon good cause shown, may permit the examination to be conducted by the following: (a) two (2) nurse practitioners, one (1) of whom must be a psychiatric nurse practitioner; or (b) one (1) psychiatric nurse practitioner and one (1) psychologist or physician assistant. Neither of the physicians nor the psychologist, nurse practitioner or physician assistant selected shall be related to that person in any way, nor have any direct or indirect interest in the estate of that person nor shall any full-time staff of residential treatment facilities operated directly by the State Department of Mental Health serve as examiner.
(3) The clerk shall ascertain whether the respondent is represented by an attorney, and if it is determined that the respondent does not have an attorney, the clerk shall immediately notify the chancellor of that fact. If the chancellor determines that the respondent for any reason does not have the services of an attorney, the chancellor shall immediately appoint an attorney for the respondent at the time the examiners are appointed.
(4) If the chancellor determines that there is probable cause to believe that the respondent is mentally ill and that there is no reasonable alternative to detention, the chancellor may order that the respondent be retained as an emergency patient at any licensed medical facility for evaluation by a physician, nurse practitioner or physician assistant and that a peace officer transport the respondent to the specified facility. If the community mental health center serving the county has partnered with Crisis Intervention Teams under the provisions of Sections 41-21-131 through 41-21-143, the order may specify that the licensed medical facility be a designated single point of entry within the county or within an adjacent county served by the community mental health center. If the person evaluating the respondent finds that the respondent is mentally ill and in need of treatment, the chancellor may order that the respondent be retained at the licensed medical facility or any other available suitable location as the court may so designate pending an admission hearing. If necessary, the chancellor may order a peace officer or other person to transport the respondent to that facility or suitable location. Any respondent so retained may be given such treatment as is indicated by standard medical practice. However, the respondent shall not be held in a hospital operated directly by the State Department of Mental Health, and shall not be held in jail unless the court finds that there is no reasonable alternative.
(5) (a) Whenever a licensed psychologist, nurse practitioner or physician assistant who is certified to complete examinations for the purpose of commitment or a licensed physician has reason to believe that a person poses an immediate substantial likelihood of physical harm to himself or others or is gravely disabled and unable to care for himself by virtue of mental illness, as defined in Section 41-21-61(e), then the physician, psychologist, nurse practitioner or physician assistant may hold the person or may admit the person to and treat the person in a licensed medical facility, without a civil order or warrant for a period not to exceed seventy-two (72) hours. However, if the seventy-two-hour period begins or ends when the chancery clerk's office is closed, or within three (3) hours of closing, and the chancery clerk's office will be continuously closed for a time that exceeds seventy-two (72) hours, then the seventy-two-hour period is extended until the end of the next business day that the chancery clerk's office is open. The person may be held and treated as an emergency patient at any licensed medical facility, available regional mental health facility, or crisis intervention center. The physician or psychologist, nurse practitioner or physician assistant who holds the person shall certify in writing the reasons for the need for holding.
If a person is being held and treated in a licensed medical facility, and that person decides to continue treatment by voluntarily signing consent for admission and treatment, the seventy-two-hour hold may be discontinued without filing an affidavit for commitment. Any respondent so held may be given such treatment as indicated by standard medical practice. Persons acting in good faith in connection with the detention and reporting of a person believed to be mentally ill shall incur no liability, civil or criminal, for those acts.
(b) Whenever an individual is held for purposes of receiving treatment as prescribed under paragraph (a) of this subsection, and it is communicated to the mental health professional holding the individual that the individual resides or has visitation rights with a minor child, and if the individual is considered to be a danger to the minor child, the mental health professional shall notify the Department of Child Protection Services prior to discharge if the threat of harm continues to exist, as is required under Section 43-21-353.
This paragraph (b) shall be known and may be cited as the "Andrew Lloyd Law."
SECTION 5. Section 41-21-71, Mississippi Code of 1972, is amended as follows:
41-21-71. If, as a result
of the examination, the appointed examiners certify that the person is not in
need of treatment, the chancellor * * *, clerk or circuit judge as applicable
shall dismiss the affidavit without the need for a further hearing. * * * Except as otherwise provided in Section 41-21-63,
the chancellor or chancery clerk finds, based upon the appointed examiners'
certificates and any other relevant evidence, that the respondent is in need of
treatment and the certificates are filed with the chancery clerk within forty-eight
(48) hours after the order for examination, or extension of that time as provided
in Section 41-21-69, the clerk shall immediately set the matter for a hearing.
The hearing shall be set within seven (7) days of the filing of the
certificates unless an extension is requested by the respondent's attorney. In
no event shall the hearing be more than ten (10) days after the filing of the
certificates.
SECTION 6. Section 41-21-73, Mississippi Code of 1972, is amended as follows:
41-21-73. (1) Except as otherwise provided in Section 41-21-63, the hearing shall be conducted before the chancellor. However, the hearing may be held at the location where the respondent is being held. Within a reasonable period of time before the hearing, notice of same shall be provided the respondent and his attorney, which shall include: (a) notice of the date, time and place of the hearing; (b) a clear statement of the purpose of the hearing; (c) the possible consequences or outcome of the hearing; (d) the facts that have been alleged in support of the need for commitment; (e) the names, addresses and telephone numbers of the examiner(s); and (f) other witnesses expected to testify.
(2) The respondent must be present at the hearing unless the chancellor determines that the respondent is unable to attend and makes that determination and the reasons therefor part of the record. At the time of the hearing, the respondent shall not be so under the influence or suffering from the effects of drugs, medication or other treatment so as to be hampered in participating in the proceedings. The court, at the time of the hearing, shall be presented a record of all drugs, medication or other treatment that the respondent has received pending the hearing, unless the court determines that such a record would be impractical and documents the reasons for that determination.
(3) The respondent shall have the right to offer evidence, to be confronted with the witnesses against him and to cross-examine them and shall have the privilege against self-incrimination. The rules of evidence applicable in other judicial proceedings in this state shall be followed.
(4) If the court finds by clear and convincing evidence that the proposed patient is a person with mental illness or a person with an intellectual disability and, if after careful consideration of reasonable alternative dispositions, including, but not limited to, dismissal of the proceedings, the court finds that there is no suitable alternative to judicial commitment, the court shall commit the patient for treatment in the least restrictive treatment facility that can meet the patient's treatment needs. Treatment before admission to a state-operated facility shall be located as closely as possible to the patient's county of residence and the county of residence shall be responsible for that cost. Admissions to state-operated facilities shall be in compliance with the catchment areas established by the State Department of Mental Health. A nonresident of the state may be committed for treatment or confinement in the county where the person was found.
Alternatives to commitment to inpatient care may include, but shall not be limited to: voluntary or court-ordered outpatient commitment for treatment with specific reference to a treatment regimen, day treatment in a hospital, night treatment in a hospital, placement in the custody of a friend or relative, or the provision of home health services.
For persons committed as having mental illness or having an intellectual disability, the initial commitment shall not exceed three (3) months.
(5) No person shall be committed to a treatment facility whose primary problems are the physical disabilities associated with old age or birth defects of infancy.
(6) The court shall state the findings of fact and conclusions of law that constitute the basis for the order of commitment. The findings shall include a listing of less restrictive alternatives considered by the court and the reasons that each was found not suitable.
(7) A stenographic transcription shall be recorded by a stenographer or electronic recording device and retained by the court.
(8) Notwithstanding any other provision of law to the contrary, neither the State Board of Mental Health or its members, nor the State Department of Mental Health or its related facilities, nor any employee of the State Department of Mental Health or its related facilities, unless related to the respondent by blood or marriage, shall be assigned or adjudicated custody, guardianship, or conservatorship of the respondent.
(9) The county where a person in need of treatment is found is authorized to charge the county of the person's residence for the costs incurred while the person is confined in the county where such person was found.
SECTION 7. Section 41-21-83, Mississippi Code of 1972, is amended as follows:
41-21-83. Except as otherwise provided in Section 41-21-63, if a hearing is requested as provided in Section 41-21-74, 41-21-81 or 41-21-99, the court shall not make a determination of the need for continued commitment unless a hearing is held and the court finds by clear and convincing evidence that (a) the person continues to have mental illness or have an intellectual disability; and (b) involuntary commitment is necessary for the protection of the patient or others; and (c) there is no alternative to involuntary commitment. Hearings held under this section shall be held in the chancery court of the county where the facility is located; however, if the patient is confined at the Mississippi State Hospital at Whitfield, Mississippi, the hearing shall be conducted by the Chancery Court of the First Judicial District of Hinds County, Mississippi.
The hearing shall be held within fourteen (14) days after receipt by the court of the request for a hearing. The court may continue the hearing for good cause shown. The clerk shall ascertain whether the patient is represented by counsel, and, if the patient is not represented, shall notify the chancellor who shall appoint counsel for him if the chancellor determines that the patient for any reason does not have the services of an attorney; however, the patient may waive the appointment of counsel subject to the approval of the court. Notice of the time and place of the hearing shall be served at least seventy-two (72) hours before the time of the hearing upon the patient, his attorney, the director, and the person requesting the hearing, if other than the patient, and any witnesses requested by the patient or his attorney, or any witnesses the court may deem necessary or desirable.
The patient must be present at the hearing unless the chancellor determines that the patient is unable to attend and makes that determination and the reasons therefor part of the record.
The court shall put its findings and the reasons supporting its findings in writing and shall have copies delivered to the patient, his attorney, and the director of the treatment facility. An appeal from the final commitment order by either party may be had on the terms prescribed for appeals in civil cases; however, such appeal shall be without supersedeas. The record on appeal shall include the transcript of the commitment hearing.
SECTION 8. This act shall take effect and be in force from and after July 1, 2024.